State Capture: Whither Malawi

The author has used the term ‘state capture’ in two of his recent articles. It is trending. But beyond the socio-political realm, state capture is no more than a mere perfumed euphemism for a multitude of criminalized conduct including: misrepresentation, false pretences, false claims, false certification, fraudulent conduct or conduct with intent to defraud, secret commissions, corrupt practices, influence peddling, insider dealing, advantage for showing favour, and the broader abuse of office, corruption, theft and fraud. Generally, the justice system especially the criminal justice system is equipped to deal with all this conduct. More particularly the established courts, law enforcement and accountability institutions have the mandate to deal with all of this conduct. The Malawi Constitution has provided for two institutions to deal with maladministration and conduct that falls outside the mandate of these established accountability institutions; the Ombudsman and the Commission of Inquiry. When the conduct to be investigated suggests that it falls, to any degree, within the mandate of any of the accountability institutions the findings of the Ombudsman or the Commission of Inquiry invariably will require a subsequent, duplicated investigation by an accountability institution using procedures and techniques that ensure litigation forensic value. It needs to be borne in mind that evidence gathering by the Ombudsman or a Commission of Inquiry is not circumscribed by the Criminal Procedure and Evidence Code. Inquiries or investigations under the Code are often intrusive and amount to violations of guaranteed rights of citizens saved by the protections under section 44 of the Constitution[1]. “Criminalized conduct including: misrepresentation, false pretences, false claims, false certification, fraudulent conduct or conduct with intent to defraud, secret commissions, corrupt practices, influence peddling, insider dealing, advantage for showing favour, and the broader abuse of office, corruption, theft and fraud” require intrusive inquiry or investigation.

The Ombudsman is established under section 120 of the Constitution with its procedure regulated by the Ombudsman Act, and in any event, its mandate is limited to where an injustice has been suffered “and it does not appear that there is any remedy reasonably available by way of proceedings in a court or by way of appeal from a court”[2]. In the Malawi context, therefore, it is technically incompetent to refer to the Ombudsman for investigation or inquiry “criminalized conduct including: misrepresentation, false pretences, false claims, false certification, fraudulent conduct or conduct with intent to defraud, secret commissions, corrupt practices, influence peddling, insider dealing, advantage for showing favour, and the broader abuse of office, corruption, theft and fraud”

It could not have been for rhetoric that the Legislature included two fundamental principles upon which the Constitution is premised; Constitutional Principles and Principles of National Policy; both in one Chapter: Chapter III. These are in sections 12 and 13 of the Constitution. The emphasis in both principles is on Government. Trust, the provisions say, a pre-condition for exercise of the power of State, “can only be maintained through open, accountable and transparent Government”. “Law and Order and respect for society”, the provisions say, is achieved “by honest practices in Government…and the humane application and enforcement of laws and policing standards”. Public Trust and good governance, the provisions say, will guarantee “accountability, transparency… which by virtue of their effectiveness and visibility will strengthen confidence in public institutions”. Over the last decade Government in the criminal justice system has systematically and cumulatively circumvented these values effectively crippling the fundamental principles through (1) non-compliance with the law and procedures; and (2) sheer impunity. On the street the common man has given the Government an unsavoury epithet; that this Government is a “criminal enterprise”. At the core of this non-compliance and impunity has been policing and public prosecutions; more particularly, the circumvention of policing and public prosecutions by the use of Commissions of Inquiry, lackadaisical investigations, discontinuance or withdrawal of cases including take overs and discontinuance of private prosecutions.

Commission of Inquiry is under ‘General Administration in the Laws of Malawi Chapters 17, 18 and 19 which are also the chapters that regulate national flag, district and other boundaries, public holidays, public stores, Malawi Red Cross, control of goods and control of contracts for statutory corporations. Commissions of Inquiry are not designed for delivery of justice. That must be the reason they do not appear under Administration of Justice in Chapters 3 – 9 dealing with, among other subjects: Civil Law and Procedure, Criminal Law and Procedure, and Inquests. Indeed, the Commission of Inquiry Act provides that the President will issue a commission of inquiry into “any matter in which an inquiry would be for the public welfare”. The very narrow definition of public welfare in the Collins Dictionary says it means “state aid for poor people”. The Cambridge Dictionary gives two meanings “physical and mental health and happiness, especially of a person”; or “help given, especially by the state or another organization, to people who need it, especially because they are poor”. 

It is therefore a travesty of justice to transpose Commissions of Inquiry for the conduct of inquests and for inquiry or investigation of “criminalized conduct including: misrepresentation, false pretences, false claims, false certification, fraudulent conduct or conduct with intent to defraud, secret commissions, corrupt practices, influence peddling, insider dealing, advantage for showing favour, and the broader abuse of office, corruption, theft and fraud”. The Commissions of Inquiry has a political function while the inquiry or investigation of “criminalized conduct” is purely a judicial function. The Inquests Act has suffered the most non-compliance and circumvention through the use of Commissions of Inquiry, but that is subject covered by a separate article.

The South African comparative institutions to the Malawi Ombudsman and Commission of Inquiry are, for State Capture, the Public Protector and the Judicial Commission of Inquiry into State Capture (chaired by the Honourable Mr Justice Raymond Mnyamezeli Mlungisi Zondo, Deputy Chief Justice of the Republic of South Africa; the Commission is in this article referred to as the ‘Zondo Commission’)[3]. The Zondo Commission was instituted in 2018 following a report[4] of the Public Protector after investigations into several complaints that had been laid before that office in 2016. The sequencing is important to identify the appropriate entry point should Malawi wish to pursue an inquiry or prosecution of state capture, corruption or fraud.

The process rightly commenced before the Public Protector because the complaints were about maladministration: Alleged breach of the Executive Member Ethics Act, 1998; and Awarding of contracts by certain organs of state to entities linked to the Gupta family. The Public Protector was being moved to investigate: the roles played by the Gupta family and the President in the appointment to Ministerial positions of Mr Jonas and Ms Mentor and Mr Van Rooyen; whether President Zuma had improperly and in violation of the Executive Ethics Code involved the Gupta family and his son in the removal and appointment of the Minister of Finance in December 2015, removal and appointing of various members of the Cabinet, or appointing members of Boards of Directors of SOEs; and whether any state functionary acted unlawfully, improperly or corruptly in connection with the appointment or removal of Ministers and Boards of Directors of SOEs, the award of state contracts or tenders to Gupta linked companies or persons, or the provision of business financing facilities to Gupta linked companies or persons. The complaints, therefore, did not directly allege theft, fraud or corruption[5].

The Public Protector found that

The investigation has proven that the extent of issues it needs to traverse and resources necessary to execute it is incapable of being executed fully by the Public Protector. This was foreshadowed at the commencement of the investigation when the Public Protector wrote to government requesting for resources for a special investigation similar to a commission of inquiry overseen by the Public Protector[6].

 The Public Protector thus recommended

The President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President[7]. 

And,

The Public Protector, in terms of section 6 (4) (c) (i) of the Public Protector Act, brings to the notice of the National Prosecuting Authority and the DPCI those matters identified in this report where it appears crimes have been committed[8].

 The Zondo Commission was a result of the recommendation of the Public Protector. Its purpose was to investigate those matters that the Public Protector had been unable to identify as crimes and more generally the matters where “the investigation has proven that the extent of issues it needs to traverse and resources necessary to execute it is incapable of being executed fully by the Public Protector”[9]. Central to the mandate of the Zondo Commission was to inquire into, make findings, report on and make recommendations:

whether, and to what extent and by whom attempts were made through any form of inducement or for any gain of whatsoever nature to influence members of the National Executive (including Deputy Ministers), office bearers and /or functionaries employed by or office bearers of any state institution or organ of state or directors of the boards of SOE's. In particular, the commission must investigate the veracity of allegations that former Deputy Minister of Finance, Mr Mcebisi Jonas and Ms Mentor were offered Cabinet positions by the Gupta family[10]

 The inquiry was to include the role of President Zuma in all this.

No doubt the findings and recommendations of the Commission on matters identified as criminal would be taken up or be forwarded to the law enforcement or accountability institutions for further action. This is consistent with the argument above that Commissions of Inquiry are not bound by criminal procedure rules. Like Commissions of Inquiry under Malawi law, the Zondo Commission determined its own rules and was not bound by the Criminal Procedure Act, 1977 (of South Africa, as amended). Such rules, however, are often inadequate for the cogency of forensic evidence required in criminal matters. Even the Chair of the Zondo Commission told the High Court, on his application for extension of time, that the Commission had identified two spheres of corruption and fraud. He was of the opinion that the second sphere was of general corruption and fraud unconnected to state capture which falls outside that contemplated by the Public Protector’s remedial action and may be “referred to another forum or agency for investigation or further investigation”[11].

The Zondo Commission faced challenges of the inadequacy of its rules in various ways: witnesses’ refusal to answer questions fully or satisfactorily; obstruction of the commission’s chairperson, Deputy Chief Justice Raymond Zondo, and his personnel; failure of staff to preserve secrecy concerning any matter; disregard of a ruling by Zondo that no person shall disclose the names and addresses of witnesses; problems concerning remuneration of persons appointed by the commission; and requests for extension of term of office[12].

The requests have taken their toll on the efficacy of the Zondo Commission as well as the legitimacy of the extensions. In the application heard on 11 February 2020 the Chair was requesting in the alternative a period of ten months or four years. In response the Public Protector told the Court:

It would be a disaster if the Commission was allowed to run for another four or five years…since the Commission commenced it has failed to achieve its intended outcome, at a cost of billions of Rands in the process[13]

 However, both the Public Protector and the Council for the Advancement of the South African Constitution did not object to an extension, with the latter proposing an extension of 13 months. The Court granted the extension in the following terms:

In addition, the applicant has already advanced various ways to curtail and limit the scope and terms of reference of the Commission. There would thus be no prejudice endured by the applicant nor the Commission. Therefore, an extension from 1 March 2020 to 31 March 2021…is duly granted[14].

 The ‘Independent Online’ on 4 March 2020 reported that “two years later and the commission has cost taxpayers over R360 million, according to a parliamentary reply issued in September 2019”. It quoted Sithole on KayaFM talk on Wednesday:

"One could ask, legitimately, what could have happened if he had taken that amount of money and redirected it to the NPA for instance, which still has to do the job in any case. The problem with the Zondo commission is that it is not going to supersede the role and responsibility of the NPA. The NPA still needs to take over these cases and decide whether to prosecute or not. So we are paying for double the cost for an exercise, while its intentions were good, it just doesn't seem like we have found the right model of how to run it effectively.[15]"

The Court had acknowledged the ‘various ways to curtail and limit the scope and terms of reference of the Commission’ that had been advanced by the applicant. One of these ways the Chair advanced was, that “in terms of paragraph 7 refer those issues which he considered appropriate to law enforcement agencies”. Sithole on KayaFM argues that these issues will, invariably, end up with the National Prosecuting Authority. However, what Sithole and the Court seem not to have considered is the concern raised by the applicant when he submitted that:

Investigations need to be conducted as regards the extent that the law enforcement entities such as the National Prosecution Authority (NPA), the Directorate of Priority Crimes Investigations (HAWKS) or the Special Investigation Unit (SIU) may have also been ‘captured’[16].

This is a pertinent concern in identifying the “ideal avenue for tackling the state capture issue”.

Malawi has already made significant strides to deal with fraud and corruption, whether such fraud and corruption can be classified as general or state capture. Substantial work has already been done by the National Audit Office with the assistance of Baker Tilly for the year 2013; and with the assistance of Price Waterhouse Coopers for the years 2010 to 2014. This has hugely been complemented by National Audit Office annual and other specialist audits for the years 2012 to 2019. In addition, preliminary follow up investigations have been instituted by the Anti-Corruption Bureau and the Ombudsman on alleged frauds, corrupt practices or maladministration reported either directly to these institutions or in the media. The information and data from these exercises should provide more than adequate material to design and implement remedial action and forensic analysis for litigation.

A Commission of Inquiry would be a mere and extravagant euphemism for real action which is to prosecute the crimes and recover the tainted property. The effect of a Commission of Inquiry, as shown by the circumvented inquests into high profile suspected unnatural deaths (e.g. of Robert Chasowa and President Bingu Mutharika), would be to delay, and deny, justice.

The author has prepared a ‘situation report’ titled “Discourse on Malawi State Capture” which shows that Malawi State Capture is of criminal conduct. Using the situation report it would also be easy to identify which matters are ready for litigation including prosecution, those that would only require building case dockets from the available information and those that would require investigations. The situation report has been developed from media reports and information in the public domain like published reports of the National Audit Reports. The less technical bits of the situation report will be posted on this page from time to time.

[1] Restrictions or limitations on rights prescribed by law, which are reasonable, recognized by international human rights

[2] Constitution, section 123

[3] Proclamation No. 3 of 2018 by the President of South Africa published as No. 41403 in the Government Gazette of 25 January 2018: Judicial Commission of Inquiry to inquire into allegations of State Capture, Corruption and Fraud in the Public Sector including organs of State.

[4] Public Protector, Report No. 6 State of Capture, 14 October 2016

[5] Ibid, pp. 5, 6, 10, 11; 30 - 35

[6] Ibid, Remedial Action 8.2 p.353

[7] Ibid, Remedial Action 8.4, p.353

[8] Ibid, Remedial Action 8.11 p. 354

[9] Proclamation No. 3 of 2018 by the President of South Africa published as No. 41403 in the Government Gazette of 25 January 2018: Judicial Commission of Inquiry to inquire into allegations of State Capture, Corruption and Fraud in the Public Sector including organs of State.

[10] Public Protector, Report No. 6 State of Capture, 14 October 2016; pp. 10 - 11

[11] Chairman Judicial Commission of Inquiry v President of South Africa and Others, Case No. 94785/2019, High Court, Guateng, Pretoria at p.6 as reported in Mail & Guardian newspaper accessed online on 11 May 2020 https://mg.co.za/article/2020-02-24-state-capture-commission-granted-a-13-month-extension/

[12] Mayibongwe Maqhina, State Capture Inquiry: Cyril Ramaphosa expands Raymond Zondo's powers, Independent Online, Independent Media, 10 February 2020 https://www.iol.co.za/news/politics/state-capture-inquiry-cyril-ramaphosa-expands-raymond-zondos-powers-42441578

[13] Chairman Judicial Commission of Inquiry v President of South Africa and Others, Case No. 94785/2019, High Court, Guateng, Pretoria at para 15 p.8 as reported in Mail & Guardian newspaper accessed online on 11 May 2020 https://mg.co.za/article/2020-02-24-state-capture-commission-granted-a-13-month-extension/

[14] Ibid, para 25 p.11

[15] Independent Online, Independent Media, ‘Length and cost of Zondo commission queried’ 4 March 2020 https://www.iol.co.za/news/politics/length-and-cost-of-zondo-commission-queried-44086645    

[16] Chairman Judicial Commission of Inquiry v President of South Africa and Others, Case No. 94785/2019, High Court, Guateng, Pretoria at para 7(e) p.5 as reported in Mail & Guardian newspaper accessed online on 11 May 2020 https://mg.co.za/article/2020-02-24-state-capture-commission-granted-a-13-month-extension/